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Illegitimate Borders: Jus Sanguinis Citizenship and the Legal Construction of Family, Race, and Nation

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Illegitimate Borders: Jus Sanguinis Citizenship and the Legal Construction of Family, Race, and Nation THE YALE LAW JOURNAL KRISTIN A. COLLINS Illegitimate Borders: Jus Sanguinis Citizenship and the Legal Construction of Family, Race, and Nation ABSTRACT. The citizenship status of children born to American parents outside the United States is governed by a complex set of statutes. When the parents of such children are not married, these statutes encumber the transmission of citizenship between father and child while readily recognizing the child of an American mother as a citizen. Much of the debate concerning the propriety and constitutionality of those laws has centered on the extent to which they reflect gender-traditional understandings of fathers' and mothers' respective parental roles, or instead reflect "real difference." Based on extensive archival research, this Article demonstrates that an important yet overlooked reason for the development of gender- and marriage-based derivative citizenship law-jus sanguinis citizenship-was officials' felt need to enforce the racially nativist policies that were a core component of American nationality law for over 150 years. The complex interaction of gender, race, family law, and nationality law charted here demonstrates that gender-based jus sanguinis citizenship is not a biologically inevitable feature of American nationality law, as has been argued, but is in important respects the product of choices made by officials engaged in a racially nativist nation-building project. This history also suggests that what is at stake in modern challenges to gender-based citizenship laws is not only the constitutionality of those statutes, but a mode of reasoning about citizenship, family, gender, and race that continues to shape the practice and politics of citizenship in ways that are often obscured in modern citizenship debates. AUTHOR. Professor of Law, Boston University School of Law; Sidley Austin-Robert D. McLean '70 Visiting Professor of Law, Yale Law School, 2013-2014. Earlier versions of this Article were presented at Yale Law School, the University of Minnesota, the Massachusetts Institute of Technology, Boston University, Iowa University, the University of California at Irvine, Chicago-Kent, and the annual meetings of the American Society for Legal History and the American Association of Law Schools. I am grateful for the thoughtful comments I received during those presentations, as well as input from numerous colleagues, including Kerry Abrams, Kathy Baker, Angela Banks, Susanna Blumenthal, Khiara Bridges, Janet Calvo, Sam Erman, Bill Eskridge, Ariela Gross, Harold Koh, Gary Lawson, Carol Lee, Stephen Lee, Gerry Leonard, Serena Mayeri, Hiroshi Motomura, Melissa Murray, Claire Priest, Judith Resnik, Cristina Rodriguez, David Seipp, Dan Sharfstein, Reva Siegel, Norman Spaulding, Emma Teng, Patrick Weil, Barbara Welke, John Witt, and especially Linda Kerber. Archivists William Creech, David Langbart, and Rodney Ross, of the National Archives, and Zachary Wilske, of the Historical Research Branch of the U.S. Citizen and Immigration Services, provided expert assistance during my research trips to Washington and went beyond the call of duty on several occasions. Fabulous research assistants helped at different stages of this project: Allison Gorsuch, Jessica Marsden, and Rebecca Counts of Yale Law School, and Stephanie Hoffman, Jarrod Schaeffer, and Jessica Wall of Boston University School of Law. Law librarians at Boston University and Yale Law School deserve special commendations for their able and diligent assistance procuring sources. Finally, my thanks to the editors of the Yale Law journal, and especially to Alex Hemmer, for superb and thoughtful editorial assistance. 2134 ARTICLE CONTENTS INTRODUCTION 2136 1. PERSONAL STATUS LAWS, CITIZENSHIP, AND THE CIVIL WAR 2144 A. Guyer v. Smith 2145 B. Domestic Relations Law and the Legal Construction of Race 2149 II. GUYER'S LEGACY 2153 A. A Primer on Racially Nativist and Gender-Based Nationality Laws 2154 B. Guyer as a Rule of Empire 2159 1. Samoa and "an Institution of Our Civilization" 2160 2. Half-Castes, Polygamy, and the Presumption of Legitimacy 2164 3. Presumptions and the Pliability of Domestic Relations Law 2167 C. Guyer as a Rule of Exclusion 2170 i. Chinese American Fathers andJus Sanguinis Citizenship 2171 2. The Legitimation Exception and Polygamous "Stock-Farms" 2174 3. Race, Polygamy, and Legitimacy 2180 D. The Practice ofjus Sanguinis Citizenship 2182 III. THE GUYER RULE IN THE MODERN ERA OF NATIONALITY LAW 2188 A. Modernizing and Codifying Guyer: The Drafting of the Nationality Act of 1940 2189 1. Women's Claims to Equal Citizenship Rights as a Threat to the Exclusion Laws, 1922-1940 2191 2. Nonmarital Children of American Fathers and the Proposed Code 2196 3. The Maternalist Exception: Nonmarital Children of American Mothers 2199 B. The Guyer Rule at War: War Brides, War Babies, and "Bui Doi" 2207 C. On Nation Building, Nationality, and Family Law 2215 IV. REFLECTIONS ON THE PRACTICE AND POLITICS OF MODERN DERIVATIVE CITIZENSHIP 2219 A. Re-reading the Present 2220 B. "Biological Inevitability" and Constitutional Choices 2228 CONCLUSION 2234 2135 THE YALE LAW JOURNAL 123:2134 2014 INTRODUCTION [I]t seems clear that illegitimate half-castes born in semi-barbarouscountries ofAmerican fathers and native women are not American citizens. -Edwin Borchard, The Diplomatic Protectionof Citizens Abroad (1915) Children born in the United States are citizens by virtue of the Fourteenth Amendment's Citizenship Clause, but the citizenship status of children born to Americans living outside the United States is governed by a complex set of statutes.' When the parents of such children are unmarried, those laws encumber citizenship transmission between the father and his child, while providing nearly automatic citizenship transmission between an American mother and her child.2 In three constitutional challenges to the gender-based regulation of parent-child citizenship transmission-Miller v. Albright, Nguyen v. INS, and Flores-Villar v. United States-the Supreme Court upheld these distinctions while laboring to explain why Congress has drawn such sharp lines between the nonmarital children of American mothers and fathers.3 1. Compare U.S. CONST. amend. XIV, 5 1, with 8 U.S.C. §§ 1401, 1409 (2012). 2. In order to secure citizenship for his nonmarital foreign-born child born on or after November 14, 1968, the father must provide proof of paternity or legitimation before the child turns eighteen and proof of provision of financial support. In addition, a blood relationship between the child and the father must be established by "clear and convincing evidence," and the father must satisfy an age-calibrated residency requirement. See 8 U.S.C. §5 1401(g), 1409(a). By contrast, the mother of a nonmarital foreign-born child need only have lived in the United States for one year at any point in her life. See id. 5 1409(c). The requirements for father-child citizenship transmission outside marriage have varied since they were first codified in 1940, while the liberal standards for mother-child citizenship transmission outside marriage have remained essentially the same. Compare Nationality Act of 1940, ch. 876, §5 201-205, 54 Stat. 1137, 1138-40, with 8 U.S.C. 5 1409(c). Because Congress generally has not made retroactive changes to the requirements that apply to nonmarital children of American fathers, the older standards remain governing law for children who achieve majority prior to the effective date of a subsequent change. 3. See Flores-Villar v. United States, 131 S. Ct. 2312 (2011) (per curiam), affg by an equally divided court 536 F.3 d 990 ( 9 th Cir. 2008); Nguyen v. INS, 533 U.S. 53, 56-57 (2001); Miller v. Albright, 523 U.S. 420, 424 (1998). Nguyen and Miller involved challenges to the father- only legitimation and proof-of-paternity requirements of 8 U.S.C. § 1409(a)(4) and 8 U.S.C. 5 1409(a)-(b), while Flores-Villar challenged the disparate parental residency requirements that apply to fathers and mothers of foreign-born nonmarital children. Compare 8 U.S.C. §5 1409(a), 1401(a)(7) (1970), with id. § 1409(c). Although Congress reduced the duration of the parental residency requirement prospectively in 1986, the statute continues to hold mothers and fathers of nonmarital foreign-born children to 2136 ILLEGITIMATE BORDERS Historians and legal scholars have also addressed this issue, and the resulting scholarship has largely focused on the origin of the gender-based regulation of jus sanguinis citizenship in the traditional cultural and legal norms that governed mothers' and fathers' respective parental rights and responsibilities outside marriage, and the perpetuation of those norms in what is now called derivative citizenship law.4 In this Article, I argue that a primary and overlooked explanation for the development and durability of gender-asymmetrical jus sanguinis citizenship law was the felt need of judges, administrators, and legislators to further the racially nativist policiess that were central to American nationality law until 1965.6 At formative moments in the development of American nationality law, different standards. Compare 8 U.S.C. §§ 1401(g), 1409(a) (2012), with id. S 1409(c). 4. As I have demonstrated elsewhere, the gender-asymmetrical principles governing birth status (i.e., bastardy law) were incorporated into citizenship law, limiting citizenship transmission between American fathers and their nonmarital children while readily allowing for citizenship transmission between American mothers and their nonmarital children. See Kristin A. Collins, A Short History of Sex and Citizenship: The Historians' Amicus Brief in Flores-Villar v. United States, 91 B.U. L. REv. 1485 (2011) [hereinafter Collins, A Short History]; see also Kristin Collins, Note, When Fathers' Rights Are Mothers' Duties: The Failure of Equal Protection in Miller v. Albright, lo9 YALE L.J. 1669 (2000) [hereinafter Collins, Fathers' Rights]. A number of legal scholars have considered the perpetuation of gendered norms in modem citizenship law, focusing on the gender-discriminatory dimension of the distinctions drawn between mothers and fathers of nonmarital children. For a small sample of this literature, see Martha F.
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